Employers, for the most part, are the kings of the road when it comes to regulating the use of their electronic resources.  However, several recent cases suggest that the National Labor Relations Board (NLRB or “the Board”) may soon be playing the role of traffic cop on the employer-provided segment of the information highway.  In Media General Operation v. NLRB, the Fourth Circuit affirmed the NLRB’s finding of an unfair labor practice against a newspaper which had instructed union members to stop using the company’s e-mail system to distribute union-related messages.  The Fourth Circuit relied upon the well established rule that an employer who permits any non-union use of its e-mail system — even if that non-union use violates a business-use only policy — cannot discriminate against union-related communications.  Around the same time, the Board heard oral arguments on the question whether employers violate the National Labor Relations Act (NLRA) by enforcing a prohibition against all non-business use — whether union or non-union — of their e-mail system.  See Guard Publishing Co. d/b/a The Register-Guard.

On September 10, 2007, the Board highlighted another NLRA-based restriction on the ability of employer’s to set rules for employee use of employer-provided electronic resources. The Board held that a union employer violated the NLRA by implementing a revised e-mail policy without first reaching agreement or impasse with the union.  This ruling will be a speed bump for unionized employers struggling to keep current their policies regulating the use in the workplace of rapidly evolving communications technology and of an ever expanding menu of personal “gadgets” (iPods, Blackberries, camera phones, etc.). 

The recent decision involved California Newspaper Partnership d/b/a ANG Newspapers (ANG), a publisher of five newspapers in the San Francisco Bay Area.  The newspaper company faced a grievance from the Media Workers’ Union for disciplining a reporter who had sent an e-mail to several other union members/employees about union matters in violation of ANG’s policy prohibiting all employees from sending such “broadcast e-mails” on any subject matter.  The union attacked the discipline by arguing that the policy which the reporter allegedly had violated (the “ challenged policy”) was unlawful.  To support that position, the union contended that the challenged policy was a revision of a prior policy and that the newspaper had commenced bargaining over the challenged policy but implemented it unilaterally before reaching agreement or impasse with the union.

ANG did not dispute that the e-mail policy was a mandatory subject of collective bargaining or that it had not completed the bargaining process.  ANG sought to escape these concessions by arguing that the union had waived its right to bargain over the e-mail policy because the collective bargaining agreement conferred on ANG the exclusive right to establish, amend and discontinue rules of conduct and operating policies (the “management-rights clause”).  Rejecting this argument, the NLRB adopted the position of the Administrative Law Judge (ALJ) that the management-rights clause was too vague to act as a waiver of the union’s right to bargain over rules, like ANG’s challenged e-mail policy, that are backed up by discipline.  The NLRB also adopted the ALJ’s position that the collective bargaining agreement’s “zipper clause” — stating that bargaining was concluded with respect to “all proper subjects of bargaining,” even if that subject matter had not actually been raised during negotiations — also was insufficiently specific to constitute a waiver of the union’s bargaining rights.

Ironically, the Union’s defeat of the “challenged policy” was a Pyrrhic victory for the union. The prohibition on broadcast e-mail, which was the basis of the grievance in the first place, was identical in both the challenged policy and its predecessor.  Once the challenged policy was rescinded, its predecessor policy became the controlling policy, including the identical prohibition on broadcast e-mail.  Nonetheless, the lesson for union employers remains the same: an electronic resources policy can not be materially updated without first engaging in collective bargaining over the proposed changes.

This entry was co-authored by Philip L. Gordon.